Ethics Opinions

The Ethics Committee of The Mississippi Bar has been asked to
render an opinion on the following question:

How long should Mississippi attorneys retain files
before either returning them to the client or destroying the
files?

Almost thirty years ago, the
American Bar Association Committee on Ethics and Professional
Responsibility was asked a similar question and observed that how
to deal with the burden of storing retired and inactive files "is
primarily a question of business management and not primarily a
question of ethics or professional responsibility." Informal Op.
1384, ABA Comm. On Ethics and Prof. Resp. (March 14, 1977). ABA
Informal Opinion 1384 also noted that questions about the ownership
of or proprietary interests in the contents of lawyers' files were
usually questions of law. Nothing has occurred in the intervening
years to undermine those observations. Yet questions
persist.

The Preamble to the Mississippi
Rules of Professional Conduct posits:

Virtually all difficult ethical
problems arise from conflict between a lawyer's responsibilities to
clients, to the legal system and to the lawyer's own interest in
remaining an upright person while earning a satisfactory living.
The Rules of Professional Conduct prescribe terms for resolving
such conflicts. Within the framework of these Rules many difficult
issues of professional discretion can arise. Such issues must be
resolved through the exercise of sensitive professional and moral
judgment guided by the basic principles underlying the
Rules.

ABA Informal Opinion 1384
recognized that the question of preservation of lawyers' files
presented such a need for a balancing of competing
interests:

A lawyer does not have a general
duty to preserve all of his files permanently. Mounting and
substantial storage costs can affect the cost of legal services,
and the public interest is not served by unnecessary and avoidable
additions to the cost of legal services.

But clients (and former clients)
reasonably expect from their lawyers that valuable and useful
information in the lawyers' files, and not otherwise readily
available to the clients, will not be prematurely and carelessly
destroyed, to the clients' detriment.

Neither the rules of professional
ethics then in effect nor previous opinions of the ABA committee
directly dealt with the question, Opinion 1384 observed before
going on to offer this general guidance:

We cannot say that there is a
specific time during which a lawyer must preserve all files and
beyond which he is free to destroy all files.

Good common sense should provide
answers to most questions that arise.

Having said that, Opinion 1384
went on to suggest eight specific matters that lawyers should take
into consideration in making decisions about preserving files. We
will return to this list in due time.

The Mississippi Bar adopted ABA
Informal Opinion 1384 a few years later when it issued advice in
Opinion No. 98 (Oct. 5, 1984) to a lawyer who proposed to destroy
old files of a deceased lawyer. Thus, and in a situation involving
a lawyer dealing with the files of a deceased lawyer, a Mississippi
lawyer must follow the guidelines adopted in Opinion No. 98 of the
Mississippi Bar and suggested in ABA Informal Opinion 1384, at
least insofar as such guidelines have not been superceded by
subsequent rules changes or opinions.

The question presently posed to
the Committee is much broader than that involving the files of a
deceased lawyer addressed in Opinion No. 98. Rather than leaving
lawyers to rely on "good common sense," in the words of ABA
Informal Opinion 1384, the Committee is asked to devise "bright
line" rules fixing a time by which a lawyer should return a file to
a client and a time by which the lawyer may destroy the file. These
questions involve issues that go beyond the jurisdiction of the
Committee to interpret the Mississippi Rules of Professional
Conduct. Nevertheless, the Committee is bound to provide guidance
on such matters to the extent that it can do so without exceeding
its authority. The analysis, like the Committee's authority, begins
with the Mississippi Rules of Professional Conduct.

Only four provisions of the
Mississippi Rules of Professional Conduct can be said to address
the preservation of client files in any direct manner. Rule 1.6(a)
requires lawyers to maintain the confidentiality of information
related to clients. Rule 1.15 provides direction for safekeeping
the property of others. Rule 1.16(d) addresses termination of
representation and touches on disposition of files. Rule 1.17(b)(3)
mentions files in the context of the sale of a law
practice.

It is axiomatic that in carrying
out decisions about preserving or destroying material in client
files, a lawyer should strictly observe the confidentiality
requirement of Rule 1.6. The lawyer's or law firm's policies and
procedures concerning storage, access and method of destruction
should be designed to maintain the confidentiality required by Rule
1.6(a). Of course, a file may contain material that is not subject
to this rule, but good practice would suggest that the entire file
be maintained in such a way as to satisfy Rule 1.6.

Maintaining the confidentiality
of client information was a focus of the Mississippi Bar's guidance
in Opinion No. 98 (Oct. 5, 1984) and Opinion No. 114 (Jan. 29,
1986) concerning destruction of files of a deceased lawyer. Those
opinions require that a lawyer representing the estate of a
deceased lawyer review the decedent's files, but only insofar as
necessary to determine the identity of the client, and then give
the client notice of the planned destruction. Opinion No. 98 holds
that if the lawyer is unable to contact the client, the lawyer is
then to "examine the contents of the file and remove therefrom any
documents or other things that may be of value to the client or the
client's estate in the future." This opinion does not suggest what
is to be done with these "documents or things that may be of
value." For that, one must return to the Rules.

Rule 1.15 concerns property of
clients or others being held by a lawyer and sets out the only
specific file preservation period in the Rules of Professional
Conduct. Rule 1.15(a), familiar to most lawyers as the rule
governing trust accounts, requires that a lawyer:

hold property of
clients and or third persons that is in a lawyer's possession in
connection with a representation separate from the lawyer's own
property. Funds shall be kept in a separate account…. Other
property shall be identified as such and appropriately safeguarded.
Complete records of such account funds and other property shall be
kept by the lawyer and shall be preserved for a period of seven
years after termination of the representation.

It should be noted that this rule
applies not only to trust account records, but also to records of
"other property" held by a lawyer. Thus, a lawyer has a duty to
keep records of the property of others that the lawyer holds, and
to keep such records for a period of seven years after termination
of the representation. In providing for destruction of these
records, the lawyer should review each matter individually because
the time of "termination of the representation" can vary from case
to case.

This preservation of a lawyer's
records of the property the lawyer holds is, however, only a
secondary focus of Rule 1.15. The heart of the rule is the
requirement that the lawyer "appropriately safeguard[]" the
property of others. The Comment to Rule 1.15 begins with the
sentence: "A lawyer should hold property of others with the care
required of a professional fiduciary." As noted above, Opinion No.
98 recognized that a lawyer has no duty to maintain files
permanently. But, focused as it was on maintaining the
confidentiality of client information, Opinion No.98 may have
appeared to suggest that the lawyer has a duty to determine what
items the client "may reasonably expect" the lawyer to preserve,
and then preserve those items indefinitely. Opinion No. l14
attempted to clarify this issue and in so doing set out what we
described in Opinion No. 234 (Sept. 19, 1996) as "[t]he general
rule of an attorney's obligation to maintain a client's
file:"

Certainly the files must be
maintained by someone so long as there is unfinished business
relating to the representation. Beyond that, there is a balancing
between the client's expectations that valuable and potentially
useful materials in the file will not be destroyed and the costs
that storage imposes on the lawyer.

Further elaborating the
limitations on the lawyer's duty to safeguard client property,
Opinion No. 234 derived from Opinion No. 98 and Rule 1.15 the
principle that once unfinished business regarding the
representation is concluded the attorney only has an obligation to
preserve and protect the client's original documents and such
"valuable and useful information [that is] not otherwise available
to the [client]."

Opinion No. 234 goes on to
provide a clear and direct answer for most of the cases presented
the question under consideration, an answer that also synthesizes
earlier ethics opinions of the Mississippi Bar:

…So long as the
attorney gives the client all of the original documents that belong
to the client and gives originals and/or copies of all other
documents, the attorney has complied with the [Mississippi Rules of
Professional Conduct]. An attorney is not required to store a
client's file after a case has been concluded if he can give the
file to the client. The attorney may require his client to
acknowledge receipt of the file and to relieve the attorney of
responsibility for maintaining the file.

Not addressed in Opinion 234 is
the situation in which the lawyer has lost contact with the client
and therefore cannot return the file once unfinished business
regarding the representation is concluded. Moreover, the Comment to
Rule 1.15 states:

Unclaimed Property.
Any lawyer holding property or monies belonging to clients with
whom he has lost contact must retain and account for said funds
subject to the Mississippi Uniform Disposition of Unclaimed
Property Act.

Again, the Comment addresses only
what should be done with "funds," and the Act, Miss. Code Ann. §
89-12-1, et seq., makes no provision for dealing with unclaimed
tangible personal property in the hands of anyone not a part of the
federal government.

Since all of these authorities
have had the opportunity to consider the question under review, and
none have found a principle way to relieve the lawyer of the
obligation to safeguard a client's property when the property
cannot be returned to the client, the Committee also declines to do
so today. In the Committee's view, the tangible personal property
in a client's file that is the property of the client, must, except
as provided below, be returned to the client or safeguarded
indefinitely by the lawyer in accordance with the Mississippi Rules
of Professional Conduct.

The practical and sound advice in
Opinion No. 234 and the Comment to Rule 1.15 raise the question of
what documents "belong to the client." This question is also
presented by Rules 1.16(d) and 1.17(c). Each of these rules, in a
different context, mentions the right of a client to obtain
material from the client file maintained by a lawyer. For more than
forty years, the ownership of specific items contained in a file
has been considered to be a question of law. American Bar
Association Informal Opinion No. 790 (Oct. 26, 1964). After
reviewing the various authorities, we concluded in Opinion No. 144
(March 11, 1988) that:

to the extent that the
client has a right to his file, then his file consists of the
papers and property delivered to him by the lawyer, the pleadings
or other end product developed by the lawyer, the correspondence
engaged in by the lawyer for the benefit of the client and the
investigative reports which have been paid for by the client.
[Citation omitted.] However, the lawyer's work product is generally
not considered the property of the client….

We have elsewhere addressed the
very limited circumstances under which a lawyer may withhold from
the client the portions of a file that belong to the client.
See

In Summary, once unfinished
business regarding the representation has been concluded, all parts
of the file that belong to the client should be returned to the
client. If the client cannot be located, the parts of the file that
belong to the client must be safeguarded in accordance with the
Mississippi Rules of Professional Conduct.

The Committee further holds that
there is no violation of the Mississippi Rules of Professional
Conduct when a lawyer follows and abides by the precepts quoted in
Opinion No. 98 from ABA Informal Opinion 1384 (Oct. 5, 1984), at
least to the extent that such principles have not been overruled by
subsequent opinions. The guidelines set out in that opinion
are:

• Unless the client consents, a
lawyer should not destroy or discard items that clearly or probably
belong to the client. Such items include those furnished to the
lawyer by or in behalf of the client, the return of which could
reasonably be expected by the client, and original documents
(especially when not filed or recorded in the public
records).• A lawyer should use care
not to destroy or discard information that the lawyer knows or
should know may still be necessary or useful in the assertion or
defense of the client's position in a matter for which the
applicable statutory limitations period has not expired.• A lawyer should use care
not to destroy or discard information that the client may need, has
not previously been given to the client, and is not otherwise
readily available to the client, and which the client may
reasonably expect will be preserved by the lawyer.• In determining the length
of time for retention or disposition of a file, a lawyer should
exercise discretion. The nature and contents of some files may
indicate a need for longer retention than do the nature and
contents of other files, based upon their obvious relevance and
materiality to matters that can be expected to arise.• A lawyer should take
special care to preserve, indefinitely, accurate and complete
records of the lawyer's receipt and disbursement of trust
funds.• In disposing of a file, a
lawyer should protect the confidentiality of the contents.• A lawyer should not destroy
or dispose of a file without screening it in order to determine
that consideration has been given to the matters discussed
above.• A lawyer should preserve,
perhaps for an extended time, an index or identification of the
files that the lawyer has destroyed or disposed of.

Obviously many factors outside
the Mississippi Rules of Professional Conduct should be taken into
account when a lawyer or law firm develops a file retention policy
and practice. Among these factors are the limitation periods for
claims against the lawyer and for claims that the client might
choose to advance against others. In any case in which the client
terminates representation by a lawyer, the lawyer should use
caution in destroying any files that might be relevant.

Another option for file retention
is for the lawyer to consider implementing an electronic storage
system for those materials that can be maintained in that medium.
Any lawyer who implements such a storage system is encouraged to
keep abreast of the changes and advances in electronic storage so
that they will be able to successfully retrieve their older
electronically stored materials in the years that
follow.